Australian officials refused to help Saudi legal action despite Minister’s assurances

Australian officials last year refused to get involved in a wage theft legal case launched by locally employed staff of the Saudi Arabian embassy’s cultural mission.

Senator Penny Wong replaced former Senator Marise Payne as Foreign Affairs Minister in May 2022. Picture: Newswire/Andrew Taylor

Australian officials last year refused to get involved in a wage theft legal case launched by locally employed staff of the Saudi Arabian embassy’s cultural mission who claim they have been underpaid in wages and superannuation after being put on “sham” contracts.

More than 40 current and former Australian employees of the Saudi cultural mission in Canberra have launched two Federal Court lawsuits, including a class action filed this year alleging up to $10m in unpaid entitlements and superannuation.

Both cases also allege the Saudi cultural mission failed to meet its obligations as an employer in not paying the tax of some staff since 2004, when the mission was set up by the embassy.

The Australian Taxation Office would not comment but, according to some former staff members, it has negotiated repayment plans for a number of employees.

Staff members have told The Australian they had repeatedly appealed for intervention by Australia’s Department of Foreign Affairs, which had sent a letter to all foreign embassies in 2007 reminding them to follow workplace laws in employing Australian citizens and permanent residents.

The Saudi Arabia embassy in Canberra. Picture: Google Maps

In 2022, 17 workers who filed the first legal action of underpayment and unfair dismissal under alleged breaches of the Fair Work Act were assured by Morrison government foreign minister Marise Payne that the case was being monitored and DFAT officials would “take appropriate action”.

In a letter to federal ACT-based Labor MP Andrew Leigh, who had contacted her about the “employment conditions” at the cultural mission, Ms Payne said DFAT officials were aware of the case, which included allegations of forced resignations of spouses on staff. “DFAT understands the Fair Work Ombudsman is monitoring the case,’’ she wrote in April 2022. “DFAT will monitor the outcomes … and take appropriate actions.”

In May 2022, Ms Payne was replaced as Foreign Minister by Labor’s Penny Wong. The federal Labor opposition had campaigned on cracking down on wage theft, and the Albanese government introduced laws criminalising underpayment by employers that will come into effect next year.

Court documents show that by July 2022, DFAT had issued a certificate that it had formally served the lawsuit, at the request of the staff members’ lawyers, on the Saudi embassy in Canberra under international diplomatic protocols. The Saudis then unsuccessfully sought to have the case “summarily dismissed”, claiming DFAT had breached the Vienna Convention of Diplomatic Relations in how it served the legal papers on one of its diplomats and also alleging a subsequent second certificate over its service was inadmissable in court. The embassy also claimed the cultural mission was outside the jurisdiction of the Australian courts and had general “diplomatic immunity”.

The Attorney-General’s Department, which first handled the request by the staff members’ lawyers, and DFAT were asked to make submissions in the case last year but refused. In his October ruling rejecting the Saudis’ attempts to have the case thrown out, Judge Warwick Neville remarked on the last-minute decision of Australian officials to refuse to respond to the cultural office’s claims about how the papers were served.

“Finally, on a procedural note, on 17th June 2023, the Attorney-General’s Department (and/or the Department of Foreign Affairs and Trade) were invited to provide written submissions given the competing claims, for example, regarding what had, or had not, been done by one or either Department in relation to service of process on the Embassy,’’ he said.

“A timeframe for the 'possible' submissions was confirmed by the Court on 2nd August 2023 to allow both Departments to seek or take instructions whether they would take up this opportunity.

“Only at the very end of this 21-day timeframe (i.e. on 22nd August 2023) did the Attorney-General’s Department advise that no submissions would be provided in the matter.”

He dismissed the Saudis’ challenge, saying “it is the overriding principle of what best serves the interests of justice that ultimately guides the court”.

An appeal to that ruling was heard last week in the Federal Court in Sydney and a decision reserved. The decision paved the way for the class action, of which the majority of claimants in the initial court case are expected to join.

A spokeswoman for Senator Wong said the office was unavailable to comment.

The class action alleges the cultural mission forced its then 100-plus workforce off ­employee contracts and on to “sham” independent contractor agreements in 2014. Many of the staff originate from the Middle East and, according to several, they had a limited understanding of workplace laws.

At least one staff member has claimed his signature was forged.

The embassy did not respond to a detailed request for comment.